Sullivan v. Gulf States Utilities Co.

• Decision Date: 21 January 1980
• Docket Number: No. 13031,13031
• Citation: 382 So.2d 184
• Parties: Cecil SULLIVAN v. GULF STATES UTILITIES COMPANY and Boh Brothers Construction Company.
• Court: Court of Appeal of Louisiana — District of US

Page 184

382 So.2d 184

Cecil SULLIVAN v. GULF STATES UTILITIES COMPANY and Boh Brothers Construction Company.

No. 13031.

Court of Appeal of Louisiana, First Circuit.

Jan. 21, 1980.

Rehearing Denied March 31, 1980.

Paul H. Due, Baton Rouge, counsel for plaintiff-appellant, Cecil sullivan.

Robert L. Kleinpeter, Baton Rouge, counsel for defendant-appellee, Boh Bros. Const. Co.

W. Arthur Abercrombie, Jr., Baton Rouge, counsel for defendant-appellee, Gulf States Utilities Co.

Before COVINGTON, LOTTINGER and COLE, JJ.

LOTTINGER, Judge.

This is an action ex delicto in which the plaintiff seeks damages against defendants, Gulf States Utilities Company (G.S.U.) and Boh Brothers Construction Company, for injuries he received in a one car accident. Plaintiff appeals from an adverse trial court judgment.

Plaintiff, a security officer for the Ethyl Corporation in Baton Rouge, finished his shift at 10:00 on the night of November 27, 1975. When he walked to his pickup truck in the Ethyl parking lot, he noticed that it appeared unusually dirty and he decided to take it to the plant's car wash before driving home. The Ethyl parking lot, including the driving lane, had recently been the site of construction work by Boh Brothers under contract with the lot's owner, G.S.U. Boh Brothers had constructed a number of concrete piers which were two feet above ground level and four and a half feet in diameter, and which were to be used by G.S.U. as foundations for high voltage utility poles.

Plaintiff proceeded through the driving lane of the parking lot towards the car wash at a speed of about 18-20 miles per hour. He passed one of the piers which had been constructed by Boh Brothers near the sodium gate of the Ethyl plant. After he passed the sodium gate plaintiff noticed headlights which were apparently on high beam directed towards him from the general area of the hydrocarbon gate, which was some 300 feet ahead of him in the parking lot. He testified that the oncoming lights were apparently on bright and that he was temporarily blinded or distracted by them. Some few seconds after he was allegedly blinded or distracted by the oncoming lights, his truck ran headon into one of the concrete piers which was located near the center of the driving lane. The testimony is not clear as to how long the plaintiff was blinded or distracted by the oncoming lights before he hit the pier. A fair inference can be drawn, however, that he had at least a few seconds to adjust to the oncoming lights before his pickup truck hit the pier.

At the time of the accident, the pier was not marked, painted or barricaded, and testimony of various Ethyl employees and expert witnesses indicated that the pier's grayish color blended almost imperceptibly into the aging asphalt that covered the parking lot. The parking lot around the pier plaintiff hit was unlighted, although a fence 50 to 60 feet away was lit in places. The pier plaintiff passed before he hit the other pier was better lit because of lighting in the area of the sodium gate.

Testimony at the trial indicated that Ethyl leased the lot from G.S.U. and was under contract with G.S.U. to provide safety barricades and other safety measures in the parking lot, as well as to direct the parking of Ethyl employees. The testimony also showed that Boh Brothers, under instructions from G.S.U., contacted security personnel at Ethyl in advance of the construction of the piers. However, on the night of the accident, barricades which previously had been placed in front of the pier in question were not there, having been removed prior to the accident.

Plaintiff knew that a number of piers had been constructed in the Ethyl parking lot but said he did not see the one he hit until an instant before he struck it, although he knew it was somewhere in the path ahead. The plaintiff also testified that he was aware that protective barrels had been removed from around most of the structures. The accident resulted in serious injuries to plaintiff and some later complications.

The trial judge, in written reasons for judgment, found both defendants negligent in failing to place warning devices around the pier. He labeled the pier "a trap, a hidden defect, and a hazard right in the middle of a lane used by vehicles for access and egress." However, he denied plaintiff recovery because he found plaintiff to be contributorily negligent in causing the accident. He reasoned that plaintiff, as an Ethyl employee engaged in security measures, knew of the construction work, knew that the piers had been constructed in and around the driving lane of the parking lot and should have been more alert and watchful while he was proceeding down the parking lane. The trial judge also said that the plaintiff should have anticipated the location of the pier and should have slowed down when he was blinded or distracted by the oncoming headlights. The judge's decision was not based on the fact that Ethyl was the company in charge of placing safety devices around the piers because the trial court found that neither G.S.U. nor Boh Brothers provided Ethyl with the proper specifications for marking these particular piers. In his signed judgment the trial judge did not mention that the defendants were negligent but simply ruled in their favor and dismissed plaintiff's suit. The judge's finding of defendants' negligence was made in his written reasons only.

In brief, plaintiff specifies a number of errors which can be condensed into two for purposes of this appeal:

The trial judge erred in finding plaintiff contributorily negligent; and

The trial court erred in applying contributory negligence to a case in which liability of the defendants should be based on the strict liability provisions of La.C.C. art. 2317.¹

As a procedural matter, the plaintiff also contends that the defendants should be precluded from challenging the trial court's written reasons finding them negligent because the defendants neither appealed nor answered plaintiff's appeal. The defendants claim they were not required to answer the appeal because La.C.C.P. art. 2133 does not require an appellee to answer unless he wants a judgment modified, revised or reversed in part or unless he seeks damages against the appellant. Since the signed judgment did not hold the defendants negligent, they claim there is no adverse judgment from which they need to appeal. We agree. The trial court's written reasons, while defining and elucidating the principles upon which he is deciding a case, form no part of the official judgment he signs and from which appeals are taken. La.C.C.P. art. 1917, 1918. Defendants did not need to appeal or answer the appeal in order to question the trial court's written reasons and to argue their position on appeal.

PLAINTIFF'S CONTRIBUTORY NEGLIGENCE

The trial court's determination of negligence on the part of defendants was manifestly correct. The defendants owed a duty to persons using the parking lot to properly label, mark and/or barricade the concrete piers that had been constructed in the lot. These concrete piers were indeed traps for the unwary. They were difficult to see at night and they easily could have been painted, marked or barricaded.

Our biggest problem on this appeal is whether the trial court was correct in finding plaintiff to be contributorily negligent. After a thorough reading of this record and a diligent investigation of the points raised by counsel in their briefs, we have decided that the trial judge was correct in finding the plaintiff contributorily negligent in striking the pier.

We think this result should apply for a number of reasons. First, plaintiff had been a security guard with Ethyl for many years and was well aware of all the conditions that existed in the parking lot at the time of the accident. Plaintiff knew that the piers, including the one that he hit, had been constructed in the parking lot more than two months prior to the accident. Secondly, plaintiff, when proceeding towards the car wash and when confronted with the oncoming headlights, had sufficient time at the slow and reasonable speed at which he was proceeding to detect and avoid the pier which he knew was somewhere in the path ahead. Plaintiff simply failed to keep a proper lookout in light of all the circumstances surrounding this accident. Were he a casual visitor to the Ethyl plant the result might be different. But he was not, and the result is not.

The plaintiff urges that the case of Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) should allow him to recover in this case. In Rue the plaintiff motorist inadvertently, perhaps negligently, drove off the highway onto the shoulder of the road where her car struck a deep rut. The court allowed her to recover, even though she was negligent in not staying on the main thoroughfare, because she did not know or suspect that the road shoulder was bad. We think the Rue case is distinguishable on its facts, in that the plaintiff in that case had no idea of the defect existing in the shoulder of the road. In the case at bar, however, the plaintiff was well aware there was a concrete abutment in the driving lane of the parking lot.

The plaintiff also urges that the doctrine of momentary forgetfulness as enunciated in the case of McClung v. Town of Winnfield, 46 So.2d 920 (La.App. 2nd Cir. 1950) should apply to this case. The McClung case is also distinguishable on its facts. The driver in McClung had just entered a bridge when he was blinded by the headlights of an oncoming vehicle. He had traveled the route frequently and knew that there was a deep hole on one side of the bridge. Faced with the oncoming headlights, the driver in that case veered slightly to the right to make sure his car and the oncoming car did not hit. In so doing his car ran into the deep rut in the bridge and he suffered injuries. The court allowed him to recover by holding, in effect, that his temporary forgetfulness...